Rivera-Diaz, et al v. Humana Health Plans of Puerto, et al
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [13-1475]
Case: 13-1475
Document: 00116674064
Page: 1
Date Filed: 04/11/2014
Entry ID: 5815325
United States Court of Appeals
For the First Circuit
No. 13-1475
GIOVANNI RIVERA-DÍAZ ET AL.,
Plaintiffs, Appellants,
v.
HUMANA INSURANCE OF PUERTO RICO, INC. ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
José Enrico Valenzuela-Alvarado, with whom Carmen I. BallestéFrank and Valenzuela-Alvarado, LLC were on brief, for appellants.
Carlos Concepción-Castro for appellee Caribbean Temporary
Services.
Elizabeth Pérez-Lleras, with whom Carl Schuster and Schuster
Aguiló LLP were on brief, for remaining appellees.
April 11, 2014
Case: 13-1475
Document: 00116674064
Page: 2
SELYA, Circuit Judge.
statutes
are
conditioned
Date Filed: 04/11/2014
Entry ID: 5815325
When federal rights-creating
upon
the
prior
exhaustion
of
administrative remedies, time limits are often an essential part of
the regulatory scheme. In this case, the plaintiff managed to trip
over not one, but two, of these temporal benchmarks.
the
district
court
dismissed
his
complaint.
Accordingly,
After
careful
consideration, we affirm.
I.
BACKGROUND
Inasmuch as this appeal follows the granting of a motion
to dismiss, we draw the relevant facts from the plaintiff's
complaint.
2005).
See Jorge v. Rumsfeld, 404 F.3d 556, 558-59 (1st Cir.
Although none of these facts has been tested in the
crucible of trial, we assume their accuracy.
We draw additional
facts
reference
from
complaint.
documentation
incorporated
by
in
the
See id. at 559.
In August of 2011, plaintiff-appellant Giovanni Rivera-
Díaz,
who
Temporary
had
been
Services
defendant-appellee
(Humana).
recruited
(CTS),
Humana
by
defendant-appellee
embarked
Health
on
Plans
new
of
Caribbean
employment
Puerto
Rico,
with
Inc.
The plaintiff's odyssey at Humana would prove to be
short-lived: his supervisor, defendant-appellee Solciré Cardona,
orchestrated his ouster roughly six weeks later.
attributes
this
adverse
employment
-2-
action
The plaintiff
to
disability
Case: 13-1475
Document: 00116674064
Page: 3
Date Filed: 04/11/2014
Entry ID: 5815325
discrimination and retaliation, alleging that Cardona repeatedly
mocked his diabetes and mental conditions.
According to the complaint, the means to Cardona's end
was a rigged test.
The plaintiff says that his non-disabled
colleagues were given the answers to the test in advance, but he
was not.
This artifice ensured that the plaintiff would post a
comparatively
low
score.
When
the
test
results
predictably
conformed to this devious design, Humana cashiered the plaintiff.
The denouement occurred on September 16, 2011 (the day after the
examination): the plaintiff was given his walking papers.
The next stop for the plaintiff was the Equal Employment
Opportunity Commission (EEOC).
his
firing,
the
plaintiff
There, less than two weeks after
charged
Humana
with
discriminating
against him on account of his disability (the first charge). After
six and one-half months, the EEOC notified the plaintiff that it
was terminating its processing of his charge and that he had the
right, during the next ninety days, to initiate a civil action
based on the first charge.
A copy of this letter (the first right-
to-sue letter) was simultaneously sent to the plaintiff's attorney.
It explicitly warned that a failure to file suit within ninety days
would result in the loss of any right to bring a suit based on the
first charge.
This warning went unrequited.
Although the plaintiff
filed a new administrative charge (the second charge) against
-3-
Case: 13-1475
Document: 00116674064
Page: 4
Date Filed: 04/11/2014
Entry ID: 5815325
Humana some two months after the first right-to-sue letter issued,
he did not sue.
Consequently, the ninety-day period lapsed.
The second charge covered the same time frame as the
first charge and reiterated the original claim of disability
discrimination.
Withal, it added a new twist: the second charge
limned a claim for retaliation (a subject not mentioned in the
first charge).
The second charge requested the prompt issuance of
a right-to-sue letter without further investigation.
obliged,
transmitting
such
a
notice
(the
second
The EEOC
right-to-sue
letter) within two months of the filing of the second charge.
Less than a month after the transmittal of the second
right-to-sue letter — but over four months after the transmittal of
the first right-to-sue letter — the plaintiff repaired to the
federal
district
asserting
claims
court.
of
He
sued
discrimination
Humana,
and
Cardona,
retaliation
and
CTS,
under
the
Americans with Disabilities Act of 1990 (ADA), see 42 U.S.C.
§§ 12112(a), 12203(a), and supplemental claims under Puerto Rico
law.1
The defendants moved to dismiss the complaint, arguing
that both of the plaintiff's ADA claims flouted separate statutory
time limits. The district court agreed. The discrimination claim,
1
The plaintiff's wife and conjugal partnership joined him in
bringing the suit. Since their rights are wholly derivative, we
refer throughout to the plaintiff in the singular. Our decision
is, of course, binding on all parties.
-4-
Case: 13-1475
Document: 00116674064
Page: 5
Date Filed: 04/11/2014
Entry ID: 5815325
it held, should have been (but was not) brought within ninety days
of the plaintiff's receipt of the first right-to-sue letter.
See
Rivera-Díaz v. Humana Health Plans of P.R., Inc., No. 12-1732, 2013
WL 496182, at *3 (D.P.R. Feb. 7, 2013).
The retaliation claim
suffered from a different infirmity: the second charge, on which it
was premised, had been filed too late with the EEOC.
See id.
Accordingly, the court dismissed both federal claims with prejudice
and, without a federal-law jurisdictional anchor, declined to
exercise supplemental jurisdiction over the local-law claims.
Id.
at *4; see 28 U.S.C. § 1367(c)(3).
The plaintiff moved for reconsideration, beseeching the
district court to apply equitable tolling to save his untimely
claim.
Relatedly, the plaintiff argued that his filing of the
second charge with the EEOC within ninety days of his receipt of
the first right-to-sue letter was the functional equivalent of an
agency reconsideration of the first charge.
The district court
disagreed, explaining that the plaintiff should have presented
these arguments in his opposition to the motion to dismiss, but had
failed to do so.
See Rivera-Díaz v. Humana Health Plans of P.R.,
Inc., No. 12-1732, 2013 WL 808634, at *1 (D.P.R. Mar. 5, 2013).
This appeal followed.
II.
ANALYSIS
Because the plaintiff's principal assignments of error
rest on the premise that his efforts to exhaust his administrative
-5-
Case: 13-1475
Document: 00116674064
Page: 6
Date Filed: 04/11/2014
Entry ID: 5815325
remedies should be deemed timely, we begin with an overview of the
exhaustion process.
Claims of employment discrimination and retaliation under
the ADA are subject to the procedural requirements of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 to -9.
See 42
U.S.C. §§ 12117(a), 12203(c); Loubriel v. Fondo del Seguro del
Estado, 694 F.3d 139, 142 (1st Cir. 2012).
Under this procedural
regime, litigation "is not a remedy of first resort" for either
discrimination or retaliation cases.
(internal quotation mark omitted).
Jorge, 404 F.3d at 564
Rather, a would-be plaintiff
must first exhaust his administrative remedies.
This task
embodies "two key components: the timely filing of a charge with
the EEOC and the receipt of a right-to-sue letter from the agency."
Id.
The
administrative
first
component
charge
within
contemplates
either
180
or
the
300
filing
days
of
of
an
the
offending conduct, depending on the particular jurisdiction in
which the charged conduct occurs.
See Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278 & n.4 (1st Cir. 1999).
The
shorter of the two periods is "the general rule." Mohasco Corp. v.
Silver, 447 U.S. 807, 815 (1980); see 42 U.S.C. § 2000e-5(e)(1).
The
longer
period
is
available
only
in
so-called
"deferral"
jurisdictions, in which "a State or local agency [has] authority to
-6-
Case: 13-1475
Document: 00116674064
Page: 7
Date Filed: 04/11/2014
Entry ID: 5815325
grant or seek relief from" the allegedly illegal practice.
42
U.S.C. § 2000e-5(e)(1); see Mohasco, 447 U.S. at 815-16.
With respect to most charges of discrimination, Puerto
Rico is a deferral jurisdiction in which the longer filing period
applies.
See Bonilla, 194 F.3d at 278 n.4.
But with respect to
claims of retaliation, the Commonwealth's Department of Labor is
empowered only to grant or seek relief for charges stemming from an
opposition to sexual harassment.
See 29 C.F.R. § 1601.74.
case has nothing to do with sexual harassment.
This
Consequently — as
the parties agree — the 180-day window applies with respect to the
plaintiff's retaliation claim.
See 42 U.S.C. § 2000e-5(e)(1).
An
unexcused failure to meet this deadline forecloses recourse to the
courts.
See Jorge, 404 F.3d at 564.
The second component is equally straightforward.
Upon
receiving a right-to-sue letter, a putative plaintiff has ninety
days to file suit.
See Loubriel, 694 F.3d at 142.
Failure to do
so creates a temporal barrier to the prosecution of an ADA claim.
See id.
With this primer in place, we turn to the dismissal of
the first charge.
As the district court explained, the plaintiff
received the first right-to-sue letter on April 17, 2012, but did
not file suit until September 6, 2012.
This was well after the
ninety-day period for filing suit had expired.
-7-
Case: 13-1475
Document: 00116674064
Page: 8
Date Filed: 04/11/2014
Entry ID: 5815325
The plaintiff does not gainsay this time line but,
rather,
notes
that
the
ninety-day
filing
period
jurisdictional and is subject to equitable tolling.
Dep't of Vets. Affairs, 498 U.S. 89, 95 (1990).
is
not
See Irwin v.
In his view, the
suit-filing period should have been tolled until the issuance of
the second right-to-sue letter.
For their part, the defendants initially characterize any
tolling argument as waived because the plaintiff waited until his
motion for reconsideration to proffer it to the district court.
While it is true that matters that are raised for the first time in
a motion for reconsideration are usually deemed waived, see, e.g.,
Dillon v. Select Portfolio Serv'g, 630 F.3d 75, 80 (1st Cir. 2011),
everything depends on context.
explore
the
context
in
In this instance, we need not
exquisite
detail
as
the
plaintiff's
contention plainly fails on the merits.
We review a district court's refusal to apply equitable
tolling for abuse of discretion.
See Abraham v. Woods Hole
Oceanographic Inst., 553 F.3d 114, 119-20 (1st Cir. 2009).
Generally, equitable tolling attaches only when "a claimant misses
a filing deadline because of circumstances effectively beyond her
control."
Bonilla, 194 F.3d at 279.
The doctrine is to be
employed sparingly and should be reserved for exceptional cases.
See id. at 278-79.
-8-
Case: 13-1475
Document: 00116674064
Page: 9
Date Filed: 04/11/2014
Entry ID: 5815325
The court below did not abuse its discretion in holding
that this case does not fit within those narrow confines.
The
plaintiff identifies no circumstances beyond his control that might
have prevented him from filing suit in a timeous manner.
To
be
sure,
the
plaintiff
makes
much
of
case
law
addressing the EEOC's ability to reconsider and vacate right-to-sue
letters.
See, e.g., Brown v. Mead Corp., 646 F.2d 1163, 1166 & n.4
(6th Cir. 1981); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 245-46 (5th Cir. 1980).
case
that
the
EEOC
ever
But there is no indication in this
reconsidered,
impugned its first right-to-sue letter.
vacated,
or
otherwise
By the same token, the
agency never indicated to the plaintiff that it would do so.
The plaintiff also complains that he, a Spanish speaker,
received right-to-sue letters written exclusively in English.
But
this argument is raised for the first time on appeal and is,
therefore, forfeit.
See, e.g., Demelo v. U.S. Bank Nat'l Ass'n,
727 F.3d 117, 123 (1st Cir. 2013); Clauson v. Smith, 823 F.2d 660,
666 (1st Cir. 1987).
In any event, the argument is without merit.
It ignores
the fact that the right-to-sue letters were simultaneously sent to
the plaintiff's counsel, who professes no inability to comprehend
English.
As we have said, "notice to the attorney is notice to the
claimant."
Loubriel, 694 F.3d at 143.
-9-
Case: 13-1475
Document: 00116674064
Page: 10
Date Filed: 04/11/2014
Entry ID: 5815325
Stripped of these flourishes, the plaintiff's tolling
argument reduces to a bare plea to disregard a mandatory deadline
based on his subjective belief that filing a second administrative
charge within the ninety days allotted for suit would renew the
suit-filing period.
unambiguous
This plea is futile.
precedent
holding
that
if
It flies in the teeth of
the
proponent
of
a
discrimination claim fails to sue within the specified ninety-day
period, his claim expires and is not resuscitated by the filing of
a second administrative charge.
See, e.g., Brown v. Unified Sch.
Dist. 501, 465 F.3d 1184, 1186 (10th Cir. 2006); Spears v. Mo.
Dep't of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000);
Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d
Cir. 1986) (per curiam).
In the last analysis, the plaintiff's attempt to wrap
himself in the mantle of equitable tolling comprises little more
than a hope that we will overlook his miscalculation regarding the
ADA's procedural requirements.
But we cannot accommodate this
forlorn hope: equitable tolling does "not extend to what is at best
a garden variety claim of excusable neglect."
Irwin, 498 U.S. at
96.
This brings us to the second charge, which constitutes
the embodiment of the plaintiff's retaliation claim.
In trying to
salvage this claim, the plaintiff does not challenge the district
court's conclusion that the second charge was lodged after the 180-
-10-
Case: 13-1475
Document: 00116674064
Page: 11
Date Filed: 04/11/2014
day deadline for filing such a charge with the EEOC.
Entry ID: 5815325
Instead, he
suggests that the second charge ought to relate back to the filing
date of the first charge (a charge that was seasonably filed with
the agency, but which did not mention retaliation).
See 29 C.F.R.
§ 1601.12(b) (stating that amendments that "cure technical defects
or omissions" or "clarify and amplify allegations made" in an
administrative charge "will relate back to the date the charge was
first received").
We need not dwell on the substance of this suggestion
because the suggestion comes too late.
"If any principle is
settled in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal."
Teamsters
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992).
This principle blocks the plaintiff's path: he never
brought to the district court's attention any argument that the
second charge could be deemed timely because of its status as an
amendment to the first charge.
Although the plaintiff argued for
the timeliness of his claim in general terms and mentioned the word
"amendment," he never advanced a coherent relation-back theory.
His passing references were manifestly inadequate to preserve the
point for appellate review.
See McCoy v. MIT, 950 F.2d 13, 22 (1st
Cir. 1991) (explaining that claims which "are merely insinuated
-11-
Case: 13-1475
Document: 00116674064
Page: 12
Date Filed: 04/11/2014
Entry ID: 5815325
rather than actually articulated in the trial court" are ordinarily
deemed unpreserved).
Since the plaintiff's defense of his retaliation charge
in the court below did not alert the court to any argument that the
charge might avoid the time bar by relating back to the date of the
first charge, such an argument is a dead letter here.
There are no
extraordinary circumstances presented that might justify such a
failure and, thus, the consequences of the failure cannot be undone
on appeal.
In an effort to pull a rabbit from an otherwise empty
hat, the plaintiff insists that the district court abused its
discretion when it declined to exercise supplemental jurisdiction
over his local-law claims.
This magic trick does not work.
In support of his position, the plaintiff heralds our
decision in Redondo Construction Corp. v. Izquierdo, 662 F.3d 42
(1st Cir. 2011).
Redondo is readily distinguishable.
That was a
long-running case, in which the district court, after completion of
discovery and only four days before the scheduled trial date,
granted summary judgment on the sole federal claim, yet refused to
exercise supplemental jurisdiction over the remaining local-law
claims.
See id. at 47.
We concluded that the litigation was so
far advanced that the district court's unwillingness to see the
matter through amounted to an abuse of discretion.
See id. at 50
(explaining that "the age and advanced stage of the litigation" and
-12-
Case: 13-1475
Document: 00116674064
Page: 13
Date Filed: 04/11/2014
Entry ID: 5815325
"the enormous expense Redondo would incur in redoing the discovery
and trial preparation" made the discretionary refusal to exercise
jurisdiction
over
the
local-law
claims
"both
wasteful
and
enormously harmful to Redondo").
The case at hand stands in an entirely different posture.
It is before us after the district court's dismissal of the federal
claims on an early-in-the-game motion to dismiss. The parties have
invested
no
significant
time
in
pretrial
discovery,
trial
preparation, or the like.
The Supreme Court has made pellucid "that in the usual
case in which all federal-law claims are eliminated before trial,
the balance of factors . . . will point toward declining to
exercise
jurisdiction
over
the
remaining
state-law
claims."
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
This is the usual case. Recognizing as much, the court below hewed
to the Supreme Court's guidance. Consequently, its decision not to
exercise supplemental jurisdiction over the plaintiff's local-law
claims was well within the encincture of its discretion.
See
Rojas-Velázquez v. Figueroa-Sancha, 676 F.3d 206, 213 (1st Cir.
2012); Martinez v. Colon, 54 F.3d 980, 990-91 (1st Cir. 1995).
-13-
Case: 13-1475
III.
Document: 00116674064
Page: 14
Date Filed: 04/11/2014
Entry ID: 5815325
CONCLUSION
We need go no further.2
For the reasons elucidated
above, the judgment of the district court is
Affirmed.
2
Cardona and CTS advance additional arguments for dismissal
of the plaintiff's claims against them.
In light of what we
already have said, however, it is unnecessary for us to consider
these additional arguments.
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?